Supreme Court Will Determine Whether CWA Applies to Discharges into Ground Water

The United Supreme Court granted cert in the
County of Maui v. Hawaii Wildlife Fund (18-00260). The Court limited cert to the question of “Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. Court observers believe case will be heard in October. As previously reported, the Circuits are split on this issue.

"Every day many millions of gallons of water loaded with arsenic, lead and other toxic metals flow from some of the most contaminated mining sites in the U.S. and into surrounding streams and ponds without being treated.

Using data from public records requests and independent researchers, the AP examined 43 mining sites under federal oversight, some containing dozens or even hundreds of individual mines."

On February 6, 2019, David Ross, EPA Assistant Administrator for Water, sent a memorandum to the EPA Regional Administrators that restates EPA’s strong support for water quality trading and other market-based programs and expands the scope of opportunities envisioned in EPA’s 2003 Trading Policy. The memorandum aims to accelerate the adoption of these programs and promote increased investment in nonregulatory conservation actions to improve water quality and benefit local communities and stakeholders.

"The Green New Deal is a congressional resolution that lays out a grand plan for tackling climate change.

Introduced by Rep. Alexandria Ocasio-Cortez of New York and Sen. Edward J. Markey of Massachusetts, both Democrats, the proposal calls on the federal government to wean the United States from fossil fuels and curb planet-warming greenhouse gas emissions across the economy. It also aims to guarantee new high-paying jobs in clean energy industries."

"The Trump administration broke off talks on vehicle mileage standards with California, increasing the chances of a court battle that threatens to unsettle the auto industry.

The White House, which has proposed freezing the standards, said it would now move unilaterally to finish its own mileage rule later this year “with the goal of promoting safer, cleaner, and more affordable vehicles.”

The administration’s action challenges California’s decades-old authority to set its own, tougher mileage standards. California has used a waiver that Congress granted it under the 1970s Clean Air Act to help deal with its punishing smog. About a dozen states follow California’s mileage standards; that group accounts for about one-third of U.S. auto sales."

Western States Coalition Offers Recommendations For Improvement of Section 401 Resources

Western Governors' Association

February 20, 2019

“The Western Governors’ Association and five other leading associations of state officials have shared recommendations for process improvements relating to water quality certification under Section 401 of the federal Clean Water Act (CWA) with leadership of the Environmental Protection Agency (EPA) and Army Corps of Engineers (USACE).

The WGA-led coalition outreach on Feb. 20, 2019 is in response to “reports of efforts within (EPA and USACE) to develop rules, guidance, or policies that would modify state water certification processes under Section 401.” The coalition asserts that “curtailing or reducing state authority under CWA Section 401, or the vital role of states in maintaining water quality within their boundaries, would inflict serious harm to the division of state and federal authorities established by Congress.”

Further, “Any regulatory change to the Section 401 permitting process must not come at the expense of state authority and – regardless of whether promulgated through Administrative Procedure Act rulemaking or otherwise – federal action should be informed by early, meaningful, substantive, and ongoing consultation with state officials (and) … We stand ready to be helpful in that regard.”

The outreach includes recommendations for “potential process reforms that would reduce the instances of certification delays or denials, while preserving the balance of state and federal powers in the implementation of the CWA.” The recommendations also emphasize early coordination and communication between applicants and state and federal officials in the certification process.

The coalition letter was signed by: James D. Ogsbury, Executive Director, Western Governors’ Association; William T. Pound, Executive Director, National Conference of State Legislatures; Julia Anastasio, Executive Director and General Counsel, Association of Clean Water Administrators; Marla Stelk, Executive Director, Association of State Wetland Managers; Representative Kimberly Dudik, Chair, Council of State Governments – West; and Tony Willardson, Executive Director, Western States Water Council.”

EPA published the attached graphic to provide a visual graphic of what waters will be included and excluded under the 2019 proposed WOTUS Rule.

Cap and Trade: Oregon Lawmakers Work to Adopt Policy

AP

February 17, 2019

"Oregon lawmakers are considering a new carbon pricing policy during this year’s legislative session aimed at regulating greenhouse gas emissions in an effort to combat the effects of climate change.

The legislation, known as cap and trade, worries many of the state’s farmers and ranchers about higher fuel and energy prices at a time when profit margins are already thin, while others see it as a needed step toward climate resilience."

Superior Court Judge Mark H. Brain issued an order on December 17, 2018, quantifying the United States federal reserved water right claims for the Aaravaipa Canyon Wilderness Area (ACWA). The issues before the court were: “1) Did Congress intend to reserve all unappropriated waters within the Aravaipa Canyon Wilderness Area?; 2) If unappropriated water was available on August 28, 1984, what is the precise quantity of unappropriated water required to fulfill the minimal need of, and satisfy, the primary purpose of the Arizona Wilderness Act of 1984?; and 3) If unappropriated water was available on November 28, 1990, what is the precise quantity of unappropriated water required to fulfill the minimal need of, and satisfy, the primary purposes of the Arizona Desert Wilderness Act of 1990?The Court rejected the United States claim that it was entitled to all unappropriated flows.”

Judge Brain held the United States is not entitled to all unappropriated flows. “To provide a level of certainty to the multiple users of water in the Aravaipa subwatershed, the United States’ federal reserved water rights should be precisely quantified using an objective, measurable standard. A literal adoption of a descriptive quantification of ‘all’ water rather than a numerical quantification that can be objectively and physically measured would not be consistent with the approach taken in
Cappaert v. United States, 426 U.S. 128 (1976) . . ..” He stated in order to satisfy its burden of proof the United States must not only show that a quantity of water contributes to the primary purposes of the reservation, but “that a lesser amount would frustrate [the] accomplishment,” of the purpose of the reservation.

Judge Brain found the ACWA reserved water right served two purposes: 1) a base flow to maintain riparian and instream habitat; and 2) a flood flow to maintain the geomorphic character of the stream. The right was quantified based upon the minimum amount of water necessary to achieve each of these purposes.

The United States federal reserved water rights for fourteen springs and all other naturally occurring water within the ACWA were denied because “the field information about the springs was limited to one or two recent measurements of three springs.” Judge Brain stated that “[t]his amount of data does not suffice to describe a natural flow regime; rather it simply provides limited information about the amount of flow at a particular

point in time. This level of data does not meet the standard established by the United States Supreme Court and adopted by the Arizona Supreme Court to quantify federal reserved water rights for a non-Indian reservation where there are competing water demands.”

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.

The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to
Clay.Smith@cwagweb.org or
afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.

Updated American Indian Law Deskbook Is Now Available

The
American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.

CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.